Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air [2023] FWC 2105

[2023] FWC 2105 The attached document replaces the document previously issued with the above code on 23 August 2023. Incorrect numbering in Award extracts at [11] and [12] has been corrected. Typographical errors at [11] and [38] have been corrected. Associate to Commissioner Crawford Dated 25 August 2023 -- 1 of 22 -- -- 2 of 22 -- 1 Fair Work Act 2009 s.739—Dispute resolution Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air (C2022/7968) COMMISSIONER CRAWFORD SYDNEY, 23 AUGUST 2023 Alleged dispute about any matters arising under the Air Pilots Award 2020 – jurisdictional objection – whether dispute resolution procedure has been complied with – jurisdictional objection dismissed Background [1] On 2 December 2022, a Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Application) was filed by the Australian Federation of Air Pilots (AFAP) on behalf of the following applicants: • Adann Sadiki; • Alana Biryukov; • Anthony Obeyeskere; • Brendan Flanders; • Callum Larkman; • Dan Stanford; • Dante Schofield; • David Lindorff; • Ethan Barr; • Jay Vanderhoek; • Jonothon Sodoman; [2023] FWC 2105 DECISION -- 3 of 22 -- [2023] FWC 2105 2 • Julian Sawyer; • Mark Bennett; • Mark Ridolfi; • Matt Alcorn; • Max Pettit; • Nathan Korendijk; • Nick Faulks; • Paul Patman; • Ray Zhang; • Richard Craggs; • Rob Beauchamp; • Rob Woonton; • Roland Jones; • Ryan James; • Ryan Matthews; • Thomas Prell; and • Tom Hawksworth. (Applicants). [2] The Applicants are current, or former, employees of Vee H Aviation Pty Ltd trading as Corporate Air (Corporate Air). [3] There is no dispute that the Air Pilots Award 2020 (Award) applies1 to Corporate Air and its relevant employees and hence that the disputes procedure in clause 32 of the Award may provide the Fair Work Commission (Commission) with jurisdiction to deal with a dispute about the Award pursuant to s.739 of the Fair Work Act 2009 (FW Act). [4] On 7 December 2022, Corporate Air filed a Form F1 Application which sought dismissal of the Application on the ground that the Applicants have not followed the disputes procedure in clause 32 of the Award (Dismissal Application). -- 4 of 22 -- [2023] FWC 2105 3 [5] A conference was held before Commissioner Spencer on 9 December 2022. The matter did not resolve. Directions for the filing of material in relation to Corporate Air’s jurisdictional objection were issued on 15 December and the jurisdictional objection was listed for hearing on 25 January 2023. The hearing occurred on that date. Permission was granted to Corporate Air to be legally represented by Mark Mackrell from Norton White at the hearing. The Applicants were represented by Jared Marks from the AFAP. [6] On 21 August 2023, the matter was allocated to me to determine. Having reviewed the file and the transcript of the hearing on 25 January 2023, I was satisfied I was able to determine the jurisdictional objection based on this material. Evidence Corporate Air [7] Corporate Air relied on the following evidence in support of its jurisdictional objection: • Statement of Rob Boyes (Corporate Air - Manager of Business Services) dated 20 December 2022. This was marked Exhibit 3. Mr Boyes was cross-examined on the statement; • Statement of Rob Boyes dated 16 January 2023. This statement has three attachments containing email exchanges from 14 September 2022 to 8 December 2022. The statement was marked Exhibit 4 and Mr Boyes was cross-examined on the statement; and • Statement of Mathew Goodall (Corporate Air - Senior Base Pilot) dated 16 January 2023. Mr Goodall also held an unofficial position as ‘pilot representative’ from about April/May 2020 until around April 2022. The statement was marked Exhibit 6 and Mr Goodall was cross-examined on the statement. Applicants [8] The Applicants relied on the following evidence in opposing the jurisdictional objection: • Statement of Jared Marks (AFAP Senior Legal and Industrial Officer) dated 10 January 2023. The statement attached a bundle of correspondence between the parties for the period of 18 August 2022 to 12 October 2022. The statement was marked Exhibit 1. Mr Marks was not cross-examined; • Statement of Roland Jones (Corporate Air - Pilot) dated 10 January 2023. The statement was marked Exhibit 2. Mr Jones was not cross-examined; and • Corporate Air - Salary Review document. This document was produced by Corporate Air in response to a production order issued by Commissioner Spencer on 23 January 2023. Mr Boyes was cross-examined about this document. It was marked Exhibit 5. Submissions -- 5 of 22 -- [2023] FWC 2105 4 Corporate Air [9] Corporate Air relied on the following written submissions: • Supplementary Response dated 9 December 2022; • Submissions on Jurisdictional Objection dated 21 December 2022; and • Submissions in Reply on Jurisdictional Objection dated 17 January 2023. Mr Mackrell also provided oral closing submissions and oral reply submissions during the hearing on 25 January 2023. Applicants [10] The Applicants relied on written Submissions on Jurisdiction dated 10 January 2023. Mr Marks provided oral closing submissions during the hearing on 25 January 2023. He also provided the Commission with two aide memoires: a document linking his arguments to pages in the Court Book and a table summarising the disputes procedures in the Award, a Qantas Agreement and a Jetstar Agreement. This latter document was provided in support of the Applicants’ reliance on the judgment of Flick J in Qantas Airways Ltd v ALAEA (No 2).2 Relevant Provisions of the Award [11] The Application indicates the dispute relates to clause 15 of the Award. Clause 15 is lengthy, but important to the arguments associated with the jurisdictional objection, and states in full:3 15. Hours of work, days off and rest periods [Varied by PR718864, PR729304, PR738768, PR740726, PR762155] 15.1 Clause 15 does not apply to employees engaged in aerial application operations. 15.2 Hours of work, days off and rest periods will be determined in accordance with the following provided that ordinary hours of work must not average more than 38 per week: (a) the regulations approved by CASA from time to time; (b) general or employer-specific exemptions to, or concessions under, the regulations approved by CASA from time to time; or (c) a Fatigue Risk Management System (FRMS) that has been developed by the employer after consultation with the affected pilots and/or their representatives and approved by CASA to apply to particular employers and employees. -- 6 of 22 -- [2023] FWC 2105 5 15.3 Facilitative provision Clauses 15.4 to 15.8 may be varied by agreement between the employer and a majority of the employees in the workplace or part of it. [15.4 varied by PR738768 ppc 07Mar22] 15.4 If an employee works in accordance with clause 15.2(a) the following provisions will apply: [15.4(a) varied by PR738768 ppc 07Mar22] (a) An employee will not fly and the employer will not roster the employee to fly in excess of l00 hours in 30 consecutive days. [15.4(b) varied by PR738768 ppc 07Mar22] (b) An employee will not fly and the employer will not roster the employee to fly as a flight crew member in excess of 900 hours in 365 consecutive days. [15.4(c) varied by PR738768 ppc 07Mar22] (c) An employee engaged in flight instruction will not be required to exceed 6 hours of instructional flight time in any tour of duty. (d) The flight time in a tour of duty already commenced may be extended to the maximum prescribed by the limitations in CAO 48, CAO 48E, or an approved FRMS. [15.4(e) varied by PR738768 ppc 07Mar22] (e) Where an extension occurs the employee will receive a rest period on the ground of not less than: [15.4(e)(i) varied by PR738768 ppc 07Mar22] (i) 9 consecutive hours which will include the hours between 2200 and 0600 local time, plus one additional hour for each 15 minutes or part thereof by which the employee’s flight time exceeded 8 hours; or (ii) 10 consecutive hours plus one additional hour for each 15 minutes or part thereof by which the flight time exceeded 8 hours. 15.5 One or two pilot operation Clauses 15.6 to 15.8 apply to circumstances where an employer is operating a one or 2 pilot operation in accordance with clause 15.2(a). -- 7 of 22 -- [2023] FWC 2105 6 15.6 Reserve time [15.6(a) varied by PR738768 ppc 07Mar22] (a) An employee on reserve or stand-by duty will be contactable within any scheduled reserve duty period and will report for the appointed duty no later than 2 hours after being contacted. The employer will specify reserve duty period commencement and finishing times which will be as agreed between the employer and the majority of employees but the duration of such reserve duty periods will not exceed 11 hours. (b) On any day a rostered tour of duty will not be immediately preceded by or immediately followed by a period of reserve duty. 15.7 Periods of duty [15.7 varied by PR738768 ppc 07Mar22] The weekly duty period will normally consist of 5 days’ duty and 2 consecutive days free from all duty. By mutual agreement between the employee and the employer one day free of duty can be deferred. Where a day has been deferred a substitute day will be granted and taken within 28 days unless further deferred by mutual agreement in writing. For the purpose of rotating the roster one 2 day period may be reduced to single days in each 28 day cycle. 15.8 Periods free of duty [15.8(a) varied by PR738768 ppc 07Mar22] (a) When an employee completes the maximum permissible flying or duty hours prescribed in CAO 48 the employer will not require the employee to perform any further duties whatsoever for the remainder of the relevant period. [15.8(b) varied by PR738768 ppc 07Mar22] (b) The employer will ensure that an employee is rostered at least one weekend off in each 28 day cycle, where practical. [15.8(c) varied by PR738768 ppc 07Mar22] (c) An employee on a temporary assignment away from home base may elect to defer duty-free days. The employee will receive the deferred days off immediately upon return to home base. [15.8(d) varied by PR738768 ppc 07Mar22] -- 8 of 22 -- [2023] FWC 2105 7 (d) An employee will not be rostered for a tour of duty terminating after 2200 hours on the day preceding the rostered day or days free of duty and will not be rostered to commence duty prior to 0600 hours on the day following the day or days free of duty. [15.8(e) varied by PR738768 ppc 07Mar22] (e) Where a tour of duty, rostered to terminate before 2200 hours on the day preceding the day or days rostered free of duty, is extended by delays so that it terminates after 2200 hours, the employee will be regarded as having worked on a day off. In those circumstances clause 15.8(f) applies, except where an employee receives 6 or more calendar days free of duty in any fortnight standing alone. [15.8(f) varied by PR738768 ppc 07Mar22] (f) An employee who is a pilot will not be required to work on a rostered duty- free day. In the event of unforeseen circumstances an employer may request a pilot to work on a rostered duty-free day. If a pilot agrees to work: (i) a substitute duty-free day will be arranged within a month of the day worked; and [15.8(f)(ii) varied by PR718864, PR729304, PR740726, PR762155 ppc 01Jul23] (ii) the pilot will receive an additional amount of $123.44 per day worked. [15.8(g) varied by PR738768 ppc 07Mar22] (g) Where a tour of duty is cancelled and the employee has been notified of the cancellation by 1900 hours on the preceding day, then the day of the cancellation may be regarded as a day off. [15.8(h) varied by PR738768 ppc 07Mar22] (h) If a tour of duty scheduled to commence after 1200 hours is cancelled, and the employee has been notified of the cancellation by 2000 hours on the preceding day, then the day of the cancellation may be regarded as a day off. [15.8(i) varied by PR738768 ppc 07Mar22] (i) When an employee on assignment away from home base is not required for duty on any rostered duty day, the day will not be deemed to be a day off. (j) A tour of duty or period of reserve time at home will be preceded by a rest period on the ground of at least: -- 9 of 22 -- [2023] FWC 2105 8 (i) 9 consecutive hours embracing the hours between 2200 and 0600 local time; or (ii) 10 consecutive hours. [15.8(k) varied by PR738768 ppc 07Mar22] (k) When an aircraft is scheduled to arrive at a time that the employees would be free of duty not later than 2200 hours local time and the aircraft is delayed beyond that time, the 9 hour rest period prescribed may be commenced up to 2300 hours local time, provided the succeeding tour of duty does not exceed 6 hours. [15.8(l) varied by PR738768 ppc 07Mar22] (l) An employer will not roster an employee for a tour of duty in excess of 11 hours. Where a tour of duty has commenced it may be extended to 12 hours. [15.8(m) varied by PR738768 ppc 07Mar22] (m) Where an extension occurs the employee will receive a rest period on the ground of not less than: (i) 9 consecutive hours which will include the hours between 2200 and 0600 local time, plus one additional hour for each 15 minutes or part thereof by which the tour of duty time exceeds 11 hours; or (ii) 10 consecutive hours plus one additional hour for each 15 minutes or part thereof by which the tour of duty time exceeded 11 hours. [15.8(n) varied by PR738768 ppc 07Mar22] (n) Where a tour of duty already commenced exceeds 12 hours or the flight time exceeds 9 hours the employee will have, at the completion of the tour of duty, a rest period of at least 24 consecutive hours. [15.8(o) varied by PR738768 ppc 07Mar22] (o) Where an employee has completed 2 consecutive tours of duty, the aggregate of which exceeds 8 hours flight time or 11 hours duty time, and the intervening rest period is less than: (i) 12 consecutive hours embracing the hours between 2200 and 0600 local time; or -- 10 of 22 -- [2023] FWC 2105 9 (ii) 24 consecutive hours, if not embracing the hours between 2200 and 0600 local time, the employee will have a rest period on the ground of at least 12 consecutive hours embracing the hours between 2200 and 0600 local time or 24 consecutive hours, prior to commencing a further tour of duty. [15.8(p) varied by PR738768 ppc 07Mar22] (p) When an aircraft is scheduled to arrive at such a time that the employee would be free of duty not later than 2200 hours local time and the aircraft is delayed beyond that time, the 12 hour rest period may be commenced up to 2300 hours provided that the succeeding tour of duty does not exceed 6 hours. [15.8(q) varied by PR738768 ppc 07Mar22] (q) An employee will not commence a flight and an employer will not roster the employee for a flight unless during the 7 day period terminating coincident with the termination of the flight the pilot has been relieved from all duty associated with the employment for at least one continuous period embracing the hours between 2200 and 0600 on 2 consecutive nights. [15.8(r) varied by PR738768 ppc 07Mar22] (r) The employer will not roster an employee to fly when completion of the flight will result in the employee exceeding 90 hours of duty of any nature associated with the employment in each fortnight standing alone. For the purpose of clause 15.8, duties associated with an employee’s employment include reserve time at the airport, tour of duty, deadhead transportation, administrative duties and all forms of ground training. The operator will designate the day on which the first of the fortnightly periods will start. [12] The disputes procedure in clause 32 of the Award is of course crucial to the jurisdictional objection, it states: 32. Dispute resolution [Varied by PR763243] 32.1 Clause 32 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES. 32.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor. -- 11 of 22 -- [2023] FWC 2105 10 32.3 If the dispute is not resolved through discussion as mentioned in clause 32.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate. 32.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 32.2 and 32.3, a party to the dispute may refer it to the Fair Work Commission. 32.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration. 32.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute. 32.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 32. 32.8 While procedures are being followed under clause 32 in relation to a dispute: (a) work must continue in accordance with this award and the Act; and (b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform. 32.9 Clause 32.8 is subject to any applicable work health and safety legislation. [Note 1 varied by PR763243 ppc 01Aug23] NOTE 1: In addition to clause 32, a dispute resolution procedure for disputes regarding the NES entitlement to request flexible working arrangements is contained in section 65B of the Act. [Note 2 varied by PR763243 ppc 01Aug23] NOTE 2: In addition to clause 32, a dispute resolution procedure for disputes regarding the NES entitlement to request an extension to unpaid parental leave is contained in section 76B of the Act. Approach to construction of awards [13] In WorkPac v Skene, the Full Court of the Federal Court stated the following in relation to the interpretation of enterprise agreements: “The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose -- 12 of 22 -- [2023] FWC 2105 11 …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”4 (citations omitted) [14] These principles were cited with approval by Rangiah J with regard to awards in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3).5 [15] Deputy President Millhouse provided the following summary of legal principles specific to the Commission’s jurisdiction under s.739 of the FW Act in AMWU v Transdev Melbourne Pty Ltd:6 “[20] The Commission may deal with a dispute if the dispute settlement procedure “requires or allows” it to do so.7 The terms of the dispute settlement procedure must be considered, understood in light of its industrial context and purpose.8 The scope of the dispute settlement procedure should not be narrowly construed as “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.9 [21] In the assessment of the Commission’s power, there is a need to characterise the dispute and determine whether that characterisation has a nexus or sufficient nexus to the provisions of the Agreement.10 In doing so, the Commission is not confined to the terms of the dispute application. The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.11 Further, an industrial dispute is not necessarily fixed and definite, and it may evolve during proceedings in the Commission.12 [22] In dealing with a dispute under s 739 of the Act, the Commission must not exercise any powers limited by the Agreement’s dispute settlement term.13 Further, the Commission must not make a decision that is inconsistent with either the Act or the Agreement.”14 Consideration [16] To determine whether Corporate Air’s jurisdictional objection that the Applicants have not complied with the dispute resolution procedure in the Award should be upheld, it is necessary to assess the history of the dispute. Initial meetings and the breakdown document -- 13 of 22 -- [2023] FWC 2105 12 [17] Mr Boyes gave evidence that he was approached in around May 2021 by the Head of Flight Operations who requested a meeting to discuss ‘how the pilot salaries had been calculated’.15 Mr Boyes indicated the Head of Flight Operations referred to pilots being paid less than the minimum Award rates via an annual salary.16 [18] Mr Boyes indicated a ‘follow up’ meeting was held on 4 June 2021 and that he showed the Head of Flight Operations a spreadsheet highlighting the allowances payable under the Award to establish that the annual salary rate was sufficient. Mr Boyes indicated the Head of Flight Operations was satisfied with the response.17 [19] Mr Boyes then stated: ‘the same issue was raised again in December 2021 when Matt Goodall was appointed as the pilot representative’.18 Mr Boyes identified the issue as ‘how the annual salaries compared to the Award payments.’19 Mr Boyes stated Mr Goodall followed up about training captain payments shortly after.20 [20] Mr Goodall provided evidence that a meeting was held on 24 December 2021 between himself, Mr Boyes and Alf Jonas (Head of Flying Operations). It appears Mr Jonas is the unnamed Head of Flight Operations identified in Mr Boyes’ statement dated 20 December 2022. Mr Goodall described the purpose of the meeting in various ways, including that ‘he wanted to get a better understanding of how the Award entitlements were being paid to the pilot group as part of their salary’.21 Mr Goodall emphasised that clause 15 of the Award was not discussed or referred to at the meeting.22 Mr Goodall referred to concerns about pilots being on duty for more than five hours without a 30-minute break.23 [21] Mr Jones gave evidence that he was aware Mr Goodall met with Mr Boyes and Mr Jonas in December 2021. Mr Jones stated this meeting occurred after a group of pilots asked their unofficial representative, Mr Goodall, to ‘speak with the management team about various Award conditions that were not being provided’.24 Mr Jones, like Mr Goodall, referred to a 30- minute break not being provided after five hours of work.25 [22] Mr Jones stated Mr Goodall subsequently told him that members of the management team had indicated the pilots’ entitlements were not separately identifiable because pilots were being compensated through an aggregated salary and that Mr Goodall had requested a breakdown.26 Mr Jones stated the request was initially refused but ultimately a breakdown was provided in about January/February 2022.27 [23] Mr Boyes, Mr Goodall and Mr Jones all confirmed that Mr Boyes provided the salary breakdown document to Mr Goodall in January 2022, after Mr Goodall signed a non-disclosure agreement. [24] In terms of the status of the dispute after the breakdown document was provided by Mr Boyes to Mr Goodall, the evidence is: • Mr Goodall indicated he was busy with a new Senior Base Pilot role in January 2022 and had little time to look at the breakdown document. He advised the group in April 2022 that he could no longer be their unofficial representative because of his senior role. It was Mr Goodall’s understanding that ‘new representatives would continue the discussions about payment for meal breaks as part of the annual salaries.’28 In cross- -- 14 of 22 -- [2023] FWC 2105 13 examination, Mr Goodall stated the issues he had been agitating had effectively been handed over to the new representatives and were not resolved, ‘the discussions were still ongoing.’29 It appears Mr Goodall may not have formally advised Corporate Air that he had ceased in the representative role until September 2022;30 • Mr Boyes stated he had never been advised after the breakdown document was provided to Mr Goodall that the pilot group did not agree with the document.31 He understood from the silence that the issue was resolved;32 and • Mr Jones stated the pilot group did not agree the breakdown document demonstrated the annual salary properly compensated all pilots for, among other things, meal breaks, allowances, and training and checking relating payments.33 Mr Jones was not cross- examined on this evidence. [25] I consider this evidence establishes Mr Goodall met with Mr Boyes and Mr Jonas in December 2021 to discuss concerns from the pilots that they were not receiving all their entitlements under the Award. The position of Corporate Air was that all Award conditions are satisfied by the payment of the annual salary and a breakdown of the salary components was subsequently provided to Mr Goodall in around January 2022, to try and substantiate Corporate Air’s position. [26] I cannot accept on the evidence that the dispute was resolved from the perspective of the pilots following the provision of the breakdown document, given Mr Goodall and Mr Jones both clearly state that it was not. The silence in relation to the dispute appears to be attributable to Mr Goodall being busy and ultimately ceasing in his unofficial representative role, rather than an indication the dispute was resolved. [27] Mr Jones gave uncontested evidence that AFAP members employed by Corporate Air sought advice from the AFAP at some point in early 2022 and then again in July 2022, seeking ‘advice on how to enforce their rights under the Award, as it was apparent Corporate Air was not complying with many of its terms.’34 This led to the correspondence between the AFAP and Corporate Air from August 2022. Correspondence [28] The correspondence between the parties from 18 August 2022 speaks for itself. It is summarised below. AFAP letter 18 August 2022 [29] Mr Marks wrote to the CEO of Corporate Air, Andrew Major, on 18 August 2022 raising various concerns about whether Corporate Air was complying with its obligations under the Award. The concerns included: duty periods, the payment of an allowance for working on a duty-free day, hours of work, rostering arrangements and meal breaks. The letter identified that Corporate Air cannot ‘contract out’ of Award entitlements. [30] I consider this last point about contracting out of Award entitlements is responsive to the breakdown document and Corporate Air’s argument that the salary satisfied all Award -- 15 of 22 -- [2023] FWC 2105 14 entitlements. This is an indication the dispute was a continuation of the issues being agitated by Mr Goodall. Corporate Air letter 30 August 2022 [31] Mr Boyes responded to Mr Marks’ letter on behalf of Corporate Air on 30 August 2022. The second paragraph reads: “We note that the matters canvassed in your correspondence were previously raised with the three Senior Manager (sic) of the Flight Operations Team over 8 months ago. We discussed the matters in detail with all three who had been requested to raise the issues with Management. It was our understanding that the employees accepted Corporate Air’s position and the matter was closed. In any event, we are happy to provide the following information in light of the concerns raised in your correspondence.” [32] The letter goes on to refer to clause 1.4 Remuneration in ‘offers of employment’ and deals with concerns about hours of work and rostering. [33] The letter also raised, seemingly for the first time, that Corporate Air is operating ‘under CASA issued variations to CAO 48.1’. This issue is significant to the operation of clause 15 of the Award because it can trigger the operation of clause 15.2(b), which can in turn exclude the operation of other entitlements in clause 15. [34] The letter concludes ‘we can confirm that Corporate Air complies with all relevant requirements of the Award and those of CAO 48.1, including its Appendices and the Employer’s CASA issued variations to CAO 48.1, as varied from time to time’. AFAP letter 13 September 2022 [35] Mr Marks responded to Mr Boyes on 13 September 2022. The letter sought further clarification regarding ‘variations to CAO 48.1’ and stated: ‘at this stage our principal concern is whether CA falls under 15.2(a) or (b) of the Award’. The letter raises concerns about compliance with clause 16 of the Award and reiterated that Corporate Air cannot contract out of the Award terms. The letter indicated the AFAP was considering referring the dispute to the Commission. Corporate Air letter 30 September 2022 [36] Mr Boyes responded to Mr Marks on 30 September 2022. This letter primarily addressed Corporate Air’s argument that it operates under clause 15.2(b) of the Award, rather than clause 15.2(a). The letter accepted Corporate Air must comply with clause 16 of the Award and stated that it does so. The letter addressed the contractual points raised by the AFAP. The letter ended by questioning whether the disputes procedure in the Award had been complied with such as to enable the dispute to be referred to the Commission. AFAP letter 5 October 2022 -- 16 of 22 -- [2023] FWC 2105 15 [37] Mr Marks responded to Mr Boyes on 5 October 2022. This letter focused on the issue of whether clause 15.2(b) is applicable to Corporate Air. In relation to compliance with the dispute resolution procedure, the letter referred to Mr Boyes’ letter dated 30 August 2022 and the fact that it referred to the issues being ‘previously raised over eight months ago’. Norton White letter 12 October 2022 [38] Norton White wrote to the AFAP on behalf of Corporate Air on 12 October 2022. The letter focused on the issue of whether clause 15.2(b) applied to Corporate Air and referred to potential broader impacts on the industry arising from the AFAP’s position. Form F10 [39] The Form F10 Application was filed on 2 December 2022. The Application states the ‘parties are in dispute about whether the respondent’s operation falls under clause 15.2(a) or clause 15.2(b) of the Award’. I accept that is somewhat consistent with Corporate Air’s position that the dispute had moved away from the issues initially raised by Mr Goodall in December 2021. [40] However, it is also significant that the Application states: ‘The respondent’s position is that its operation falls under clause 15.2(b), which has the effect of displacing clauses 15.4 – 15.8 of the Award’ (my emphasis). This point is relevant because it links the dispute about the operation of clause 15.2(b) with the earlier discussions concerning Award compliance and whether the annual salary was sufficient to compensate for the Award conditions. That follows because the entitlements due under the Award, which would need to be identified to properly assess the salary rate, are impacted upon by the operation of clause 15.2(b). For example, the effect of clause 15.5 appears to be that the allowance of $123.44 per day in clause 15.8(f)(ii) only applies where the employer is operating under clause 15.2(a), as opposed to clause 15.2(b). Whether or not that entitlement is due will obviously impact the assessment of an appropriate salary rate. Has the disputes procedure been complied with by the Applicants? [41] As the authorities identified above confirm: • In the assessment of the Commission’s power, there is a need to characterise the dispute and determine whether that characterisation has a nexus or sufficient nexus to the provisions of the Agreement,35or in this case, the Award; • In doing so, the Commission is not confined to the terms of the dispute application. The entire factual background is relevant and may be ascertained from the submissions advanced by the parties on the question of jurisdiction;36 and • An industrial dispute is not necessarily fixed and definite, and it may evolve during proceedings in the Commission.37 [42] I am satisfied, at least in relation to Mr Jones, which is sufficient in itself to trigger jurisdiction for the purposes of clause 32 of the Award, that he has been in dispute with -- 17 of 22 -- [2023] FWC 2105 16 Corporate Air since around December 2021 concerning whether Corporate Air is complying with all its obligations under the Award. Specifically, Mr Jones has been querying whether the annual salary he is being paid is sufficient to compensate him for all the relevant entitlements under the Award. [43] Mr Goodall initially raised the dispute in a meeting with Mr Boyes and Mr Jonas on 24 December 2021. Mr Goodall was representing Mr Jones and other pilots at this meeting. The dispute was not resolved at the meeting. Mr Boyes provided the breakdown document to Mr Goodall in January 2022 after Mr Goodall agreed to sign a non-disclosure agreement. Mr Goodall and Mr Jones gave clear and uncontradicted evidence that this document did not resolve the dispute. [44] As stated in Mr Jones’ uncontested evidence, Mr Jones and other members then sought the assistance of the AFAP. This led to the matter being escalated by the AFAP, on behalf of Mr Jones and other AFAP members, to the CEO, Mr Major. Various correspondence followed. The dispute has still not been resolved. [45] Although the attention of the parties shifted significantly towards whether Corporate Air is covered by clause 15.2(b) of the Award from 30 August 2022 onwards, this occurred in response to a new argument raised by Corporate Air in its correspondence of that date. As the Application points out, if Corporate Air is correct about the application of clause 15.2(b), many of the issues raised by Mr Jones and other pilots about compliance with clauses 15.4 to 15.8 of the Award may fall away. This is directly relevant to the assessment of whether the annual salary satisfies the Award entitlements, which was clearly being raised by Mr Goodall in December 2021. [46] I am satisfied the shift in focus towards clause 15.2(b) of the Award constitutes an evolution of the dispute, triggered by a new argument raised by Corporate Air, as opposed to an entirely new dispute that would require recommencement of the dispute resolution procedure. This is exactly how Mr Boyes understood the situation when he drafted correspondence dated 30 August 2022 which referred to the matters agitated by the AFAP being ‘previously raised around eight months ago’. I consider Mr Boyes was right, the dispute about whether Corporate Air is meeting its obligations under the Award via the payment of the annual salary was raised squarely by Mr Goodall on 24 December 2021 and has never been resolved. It is not surprising that the operation of clause 15.2(b) was not discussed specifically at the meeting on 24 December 2021, given Corporate Air did not raise it as part of their argument for the purposes of the dispute until 30 August 2022. [47] On the basis that I characterise the dispute as being about whether the Award conditions are adequately satisfied by the annual salary, I am satisfied the Applicants have complied with clause 32.2 and 32.3 of the Award. The specific dispute about the operation of clause 15.2(b) is a part of this broader dispute. I do not consider the Applicants potentially seeking to have this narrower issue resolved first (if that is what they seek), means steps taken under the dispute resolution procedure as part of the broader dispute cannot be relied upon. The authorities confirm a dispute can evolve, even during Commission proceedings. [48] I find clause 32.2 of the Award was satisfied by Mr Goodall’s meeting with Mr Boyes and Mr Jonas on 24 December 2021. The dispute about compliance with Award obligations -- 18 of 22 -- [2023] FWC 2105 17 was not resolved at this meeting, it was continuing when Mr Boyes provided the salary breakdown document in January 2022. It has still not been resolved. [49] I consider my conclusion that the Applicants have complied with clause 32.2 is reinforced by the following statement from Flick J in Qantas Airways Ltd v ALAEA (No 2):38 “Notwithstanding a more generally expressed conclusion that the relevant clauses are to be construed with some degree of informality and flexibility, the submission advanced on behalf of Qantas and Jetstar that there needed to be some minimum content to these provisions is accepted. That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved. It is not necessary, with respect, for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. To fall within cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement, there needed to be the raising by an employee or a group of employees of an “opposing view” to that of their employer and that view had to be raised at a meeting (however flexibly that term is to be construed) at which it was known or could reasonably be inferred that each of the “opposing” sides knew that there was a dispute in need of resolution.” [50] The subsequent production of the salary breakdown document demonstrates opposing views were raised during the meeting in December 2021. The document was an unsuccessful subsequent attempt to resolve the opposing views. [51] I find clause 32.3 of the Award was satisfied by the actions taken by the AFAP since 18 August 2022. I am satisfied the AFAP attempted to resolve the dispute with more senior levels of management, namely the CEO, from 18 August 2022. It is clear from Mr Jones’ uncontested evidence that the AFAP has been at least representing Mr Jones throughout this period. [52] In terms of the forum for the discussions, it is established that: “Discussion” is a word which has different meanings depending on the context, and may in different contexts mean a face-to-face discussion, a telephone discussion or a written discussion.39 [53] That is unsurprising. It would be an odd outcome if detailed and considered written correspondence was not taken to be a ‘discussion’ for the purposes of the dispute resolution procedure, but a verbal discussion which lacked the same level of detail and consideration is taken to be a ‘discussion’. It is logical that the substance of the ‘discussion’ is more important than the format. [54] Given it is clear a ‘discussion’ can occur in writing, if I am wrong about my assessment of the meeting in December 2021, I would still find that the exchange of correspondence commencing by the AFAP’s letter dated 18 August 2022 satisfies clause 32.2 and 32.3 of the Award. Although the initial letter was addressed to Corporate Air’s CEO, it was responded to by Mr Boyes, who can be comfortably classified as the ‘relevant supervisor’ for the purposes of these clauses. The dispute clearly progressed to more senior levels of management as the -- 19 of 22 -- [2023] FWC 2105 18 correspondence continued, to the point where external lawyers were engaged to write Corporate Air’s letter dated 12 October 2022. [55] I consider my conclusion that the dispute resolution procedure has been satisfied by the Applicants is reinforced by the objects in s.3 of the FW Act. The objects include ‘providing accessible and effective procedures to resolve grievances and disputes.’ There is also a statutory direction in s.577(1)(b) of the FW Act for the Commission to perform its functions and exercise its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’. These provisions are not consistent with an overly technical approach to the application of the dispute resolution procedure in the Award, when it is clear on the evidence that significant steps have been taken to try and resolve the dispute at the workplace level prior to seeking assistance from the Commission. [56] On a more practical level, if Corporate Air wants to have further discussions directly with employees about the dispute, there is no impediment whatsoever to that occurring. The Applicants seeking assistance from the Commission does not prevent this. Conclusion [57] For these reasons, I dismiss the jurisdictional objection raised by Corporate Air in the Dismissal Application. [58] The Form F10 Application will be listed for conference in accordance with the Commission’s normal processes. COMMISSIONER Appearances: Jared Marks for the Applicants Mark Mackrell for the Respondent Hearing details: 2023. Brisbane 25 January. Printed by authority of the Commonwealth Government Printer -- 20 of 22 -- [2023] FWC 2105 19 <PR765455> 1 In accordance with s.47 of the FW Act. 2 [2020] FCA 951. 3 I note the Award has been varied since the Application was filed. However, none of the changes appear to impact the jurisdictional objection. 4 [2018] FCAFC 131 at [197]. 5 [2019] FCA 37 at [52]. 6 [2021] FWC 978. 7 Section 739(1) of the Act; see also s 595 of the Act. 8 Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 at [42], [44] and [47]. 9 Shop, Distributive and Allied Employees Association v Big W Discount Department Stores, PR924554 at [23]. 10 Seven Network v CPSU (2003) 122 IR 98 at [32]; See also Australian Nursing and Midwifery Federation v Alfred Health [2015] FWCFB 3045 at [38] and Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 at [47]. 11 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited, PR940366 at [47]. 12 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board, PR973884 at [14]-[15]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at p.168; Re PKIU; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 113 ALR 421 at [45]. 13 Section 739(3) of the Act. 14 Section 739(5) of the Act. 15 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [3]. 16 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [3]. 17 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [4]. 18 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [5]. 19 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [3]. 20 Mr Boyes statement dated 20 December 2022 - Exhibit 3 – at [6] – I assume the date should be January 2022. 21 Mr Goodall’s statement dated 16 January 2023 – Exhibit 6 – at [4]. 22 Mr Goodall’s statement dated 16 January 2023 – Exhibit 6 – at [7]. 23 Mr Goodall’s statement dated 16 January 2023 – Exhibit 6 – at [4]. 24 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [6] and [7]. 25 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [7]. 26 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [8]. 27 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [8]. 28 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [9]. 29 Transcript at PN511 and PN512. 30 Attachment RB 1 to Mr Boyes’ further statement dated 16 January 2023 – Exhibit 3. 31 Further statement of Mr Boyes dated 16 January 2023 – Exhibit 4 – at [2](c). 32 Transcript at PN214. 33 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [9]. 34 Mr Jones’ statement dated 10 January 2023 – Exhibit 2 – at [10]. -- 21 of 22 -- [2023] FWC 2105 20 35 Seven Network v CPSU (2003) 122 IR 98 at [32]; See also Australian Nursing and Midwifery Federation v Alfred Health [2015] FWCFB 3045 at [38] and Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020 at [47]. 36 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited, PR940366 at [47]. 37 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board, PR973884 at [14]-[15]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at p.168; Re PKIU; Ex parte Vista Paper Products Pty Ltd [1993] HCA 81; (1993) 113 ALR 421 at [45]. 38 [2020] FCA 951 at [70]. 39 DP World (Fremantle) Ltd v CFMMEU [2019] FWCFB 3965 at [29]. -- 22 of 22 --